Will Non-Binary Gender Markers Go Nationwide?

Jessica Porten of Rewire recently wrote: “The future is not female; it’s non-binary.” Perhaps she’s right, given the recent news about non-binary gender markers in Colorado and DC schools adding non-binary gender options on enrollment forms. Non-binary people — people who do not identify as either men or women — are getting more recognition and acknowledgment, both within and outside of the LGBTQ community.

Legal recognition of non-binary and intersex people has surprisingly come a long way since Jamie Shupe became the first legally recognized non-binary person in the U.S. in June 2016. Now there are five states — Arkansas, Oregon, California, Maine, and Minnesota — that offer non-binary gender markers on driver’s licenses and state IDs, along with the District of Columbia.

But there are questions about the future. Will non-binary gender markers go nationwide? What are the legal barriers preventing that from happening? What about people who think there shouldn’t be any gender markers at all?

Interestingly enough, gender markers did not appear on passports until the 1970s. According to Samantha Allen of The Daily Beast, gender markers officially appeared on US passports in 1977 thanks to the growing trend of unisex clothing and androgynous presentation among young people. “From a historical perspective,” she writes, “it is perhaps only fitting that the very letters used to police the transgender, intersex, and non-binary travelers of today were first introduced to police gender fluidity during another era of cultural upheaval.”

Allen isn’t the only one who suggests gender markers on IDs might be a way to police bodies. Cass Adair, a radio producer and independent scholar in Charlottesville, Virginia, has been researching the links between race and gender markers on state driver’s licenses. “Regulating who gets to move through what spaces is a really important function of driver’s licenses in the early 20th century,” Adair tells INTO. “And one of the ways that they do that is determining which bodies are which identity category. What we put on driver’s licenses changes dramatically over the course of the 20th century, and that’s a way to look at which types of people get to move in what ways, and what types of identity categories we see as salient to who somebody is.”

According to Adair, who obtained his Ph.D. from the University of Michigan, from 1910 to 1940 states such as New York, Illinois, and Georgia started adding race markers on driver’s licenses in an attempt to reinforce the idea that black people are dangerous behind the wheel. “If we have some technology like a driver’s license that can kind of check all those boxes,” Adair tells INTO, “it can make sure that only the people we want to be on the road are on the road, and it can help extend that paper trail of who is what race into that new technology.”

“It’s not just, ‘Okay, you’re on the bus and we have to figure out which part of the bus you go on.’ It’s even in spaces where you would be kind of in your private car. We want to continue to regulate this, this racial question of who gets to be where on the street,” Adair tells INTO.

Adair points to the old stereotype of women being bad drivers, and suspects the reasoning behind gender markers on driver’s licenses is similar to race markers, although he makes it very clear there are huge differences between segregation based on race and based on gender. He also says that while states used to think asking for a person’s race to put on their ID was a neutral question like asking for height and weight, most states don’t list a person’s race anymore, but they do still list gender.

“What is happening in trans movements is that they are denaturalizing or de-neutralizing that question,” Adair tells INTO. “People are saying, ‘My gender is not like having blue eyes. My gender is something that’s much more complicated or much more fraught or has a lot more social meaning than my height or my eye color.’” The problem, he explains, is that the state might see gender as a neutral category, but it’s actually a social category that the state can use to regulate bodies. “It’s a really high stakes question,” Adair says. “It shouldn’t just be a checkbox on a driver’s license.”Adair isn’t the only one with reservations about gender markers. In response to a prompt posted on Facebook, Ingrid Stone said: “I feel that gender markers should be removed.”

“Having a way to out and register [people] as trans or non-binary feels dangerous,” Stone told INTO. “I come from areas where people have been brutally attacked and murdered for being gender non-conforming.”

Steph Nagoski, Mid-Atlantic Region Leader of the Intersex and Genderqueer Recognition Project (IGRP), takes these concerns very seriously. “We’re just a couple of days past Trans Day of Remembrance,” Nagoski tells INTO, “and as we well know, people who are visibly gender nonconforming are the most frequent targets for violence in this country and worldwide, particularly trans people of color. So there are risks to visibility, and I would strongly encourage everyone to take into account and really think about those risks before taking steps to come out.”

Still, Nagoski — who uses they/them pronouns — believes having an ID that correctly lists their gender is a positive step towards being legally recognized and affirmed.

The IGRP is the first and only U.S. organization that exclusively focuses on legal recognition of intersex and non-binary people for legal documents. It is currently working with Dana Zzyym, an intersex Colorado citizen who is currently fighting for an X gender maker on their passport. This past September, a federal Colorado judge ruled that the U.S. Department of State cannot deny Zzyym’s passport application.

“We don’t have a lot of resources,” Nagoski says of the IGRP, “so we’re not able to participate in a huge amount of individual court cases. We try to focus our attention and our legal time on cases that are going to make a universal standard. That’s why we’re focusing a lot of attention on the Zzyym case from a passport perspective, although we expect to run into a lot of hurdles on that front.”

“The only path [for us at the IGRP] is to go through and get the state to support an X gender marker,” Nagoski says, “which can still lead some people to have issues from folks who don’t understand or might think it’s a fake ID. There’s still issues — not all airlines will recognize an ID with an X gender marker right now.”

Indeed, as INTO reported last month, airlines such as United Airlines do not recognize non-binary gender markers, although the TSA does. There are also those who are afraid they won’t be able to get X gender markers if the Trump administration legally erases trans, non-binary, and intersex people from the federal definition of gender.So will non-binary gender markers on identity documents go nationwide in the U.S.? Nagoski thinks so, and tells INTO, “We expect the direction of progress and the direction of acceptance and better understanding of non-binary and intersex people is just going to continue.”

“We’re not going anywhere. We’re continuing to go through and be visible and be outspoken,” says Nagoski. “The more that there’s awareness out there, the more people realize that this is an important segment of the population.”

Tris Mamone

Tris Mamone is a bisexual genderqueer freelance writer whose work has appeared in HuffPost, The Establishment, Ravishly, and Splice Today, among others. They also host the Bi Any Means podcast and co-host the Biskeptical Podcast.